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Thursday, April 9, 2009

Tim Jones of EFF Wonks Out This Time

Many people are talking about the state secrets doctrine as if it was a thingy the Bush II regime cooked up.

The doctrine is not a political doctrine, it is well established American law, but the people talking about it tend not to understand law.

For example, Tim Jones is described on the EFF website as:

A lifelong technologist and activist, Tim Jones joined the EFF full-time in November 2007. He works as the Activism and Technology Manager, coordinating online advocacy strategy, software development and tech infrastructure.

(EFF About Tim). So it remains unclear what qualifies him to make sweeping rhetorical and polemic legal conclusions about a very complicated legal subject.

There was no typical "I am not a lawyer and so you can't hold my legal opinions against me and p.s. this is not legal advice" disclaimer along with his article.

Would you suppose, then, that the nature of the article is not legal analysis?

Or would you suppose that the article is about how to write software and other technical computer stuff?

If it is about neither of those, then it must be about activism for stuff out on the electronic frontier?

The only trouble with those conclusions is that his article makes inflated, incorrect, and sweeping legal, civics, and political conclusions.

Conclusions based on his interpretation of law. Conclusions that, in my opinion, don't hold water.

Thus, to that extent at least, he damages the professional look and feel of the EFF to the demise of all of us.

The state secrets doctrine was already well known at the time of the Reynolds case decided by the US Supreme Court in 1953.

Way before Bush or Obama and even before Tim Jones for that matter. In the Reynolds case the court said:

The Claim of Privilege applied to military secrets, and asserted by the Air Force, is well established in law. The existence of privilege is conceded by the court in this case, and by the most outspoken critics of government claims to privilege

(US v Reynolds, 345 US 1, (1953), emphasis added). That doctrine was well established 56 years ago, which means it came into existence well before that year.

The state secrets doctrine is very old law that even President Abraham Lincoln used in Totten v US, 92 US 105 (1876), against a widow.

Tim Jones quotes Obama the presidential candidate as having said that the Bush II administration:

"invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court."

(Obama DOJ's New Arguments). That quote is an Obama statement about excessive use, not an Obama comment on the validity of the proper use of the well established legal principle.

This case Tim is talking about may be the first time it has been used by the Holder Department of Justice, since the entire administration is only three months old. In fact, some of the administration is not even in place yet.

Surely a single use of a valid legal doctrine would not be an excessive use would it Tim? How many times is ok Tim? Zero?

After making his astounding F. Lee Bailey legal point, Tim moves in for the kill, averring:

it's the Department Of Justice's second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.

(ibid, emphasis added). He first argues as if the DOJ and the White House are in some aspects separate. That AG Holder does not have to obey every command of the president. Tim is correct on that issue.

The mission of the DOJ is to enforce the law no matter what the law is. Bush wanted the DOJ to ignore the law, not enforce it.

That kind of DOJ activity, the AG being a robotic soldier of the president, was a perversion of the Bush II years. We now know that Gonzales was a sock puppet of Bush II, Rove, and Cheney.

So Tim needs to show some nexus, some link to reveal that Obama ordered this argument and Holder slavishly bowed down to that command. Tim asserts no such evidence nor argument. He just infers that it happened.

Tim's accusation and assertion certainly cannot be assumed from the legal papers Tim links to. Thus, even the structure of the argument Tim advances has no sensible foundation.

Now to the merits. Tim is wrong in what he asserts the DOJ argument actually is, that is, he misrepresents the actual DOJ argument.

It would be absurd for the DOJ to say "the U.S. Government is completely immune from litigation for illegal spying". Uh, Tim, are you saying that "completely immune" would also apply to criminal cases?

This civil case would decide criminal law too? You mean that illegally obtained evidence can now be used by the federal government in criminal prosecutions too? Wow Tim, that is big news!

The law is well established that equitable relief is available in civil cases in the form of injunctions and the like, even if civil damages (money awards) are not.

I read the motion papers, and what Tim says the DOJ is saying is not what the DOJ is saying.

Therefore, to say Obama is worse than Bush II based on that case, and especially over a misread of that case, is to make one suspect to being infected with the Bill O'Reilly-Rush Limbaugh-Karl Rove loose mouth virus.

The issue in the case is the personal liability of government officials, as well as the monetary liability of the public treasury for torts.

Personal damage liability law concerning federal government officials and their personal wallet or pocket book is a whole separate world from federal government damages liability law where money is paid from the treasury.

Both of those areas of law belong to a whole separate world from the law concerning other non-damages relief available when government messes up. It is well settled that other relief is available even when personal liability damage is not.

This area of the murky world of law is like tax law in the sense that it is not a place to use toy flash lights for exploring those shadowy zones.

What Tim and others can accurately say is that this area of our law is badly out of touch with American sentiments, and is in need of repair. And that is most certainly true.

But confusion is not the road to clarity, so take time to know what you are talking about, like Obama tends to do, before you carelessly blurt words out.

The correct road to take here is to change the law via federal legislation. Nancy Pelosi is open to changing it and making improvements.

The Patriot Act sunsets this December. A better law concerning state secrets, personal civil liability of federal actors who violate spy law, and / or civil liability of the government itself for such violations is in need of repair and enhancement.

But think clearly and fix only what is broken. Leave the remainder, which is not broken, alone.

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